The state of Oregon's Board of Forestry has forced Alvin and Marsha Seiber to set aside 37 acres of commercially-harvestable forestland to protect the northern spotted owl. The state is not offering any compensation. The Seibers have been prevented from harvesting for more than a year now.

The Seibers filed suit against the state alleging that their property rights had been violated. In defending its actions, the state argued that the Seibers had to accept the restrictions on the use of their property because they made the decision to harvest timber and are thus obligated to accept any restrictions the state may choose to impose on private timber operations. The state also argued that since the state may one day decide to lift the restrictions on timber harvesting, the Seibers can not claim that they suffered a permanent taking of their property that would justify compensation. Additionally, the state argued that since the Seibers could still use the other 163 acres of their 200-acre plot, they didn't deserve compensation for the regulatory taking of nearly 20 percent of their land.

But it seems the state and environmentalists involved in the case weren't just satisfied with making the argument that government has the right to compel private property owners to protect wildlife at the owners' expense. Oregon officials and the Audubon Society argued in their legal brief that the Seibers should be prevented from harvesting timber because they do "not have the right to prevent the reproduction of a species that is in danger of extinction."

The Seibers' lawyers argued in court that the state of Oregon's claim that the Seibers and other private landowners have an affirmative duty to set aside their property for wildlife preservation whenever the government says they should without compensation blatantly violates the U.S. Constitution's Fifth Amendment protection of private property.

The lawyers observed that a perverse consequence of the state's dangerously broad interpretation of its power to protect wildlife would be to encourage property owners to destroy forests that could conceivably serve as habitat for the northern spotted owl.
Source: Pacific Legal Foundation